Saturday, May 26, 2012

Thomas v. Chappell, 678 F.3d 1086 ((9th Cir 2012)

Reversing another death penalty case (2-1), the 9th Circuit panel majority reviews an "ineffective counsel" claim in a case the prosecution will never be able to retry.  The witnesses all were homeless wanderers, unreliable and inconsistent in their testimony. Nonetheless, the jury found the defendant guilty.

On direct appeal from the conviction the California Supreme Court ordered a hearing on the "ineffective counsel" claim, and was critical but did not reverse the verdict.  On habeas corpus in the 9th Circuit the panel first reminded readers the petition had been filed before the effective date of AEDPA.  This case was tried in 1985.

The ragtag witnesses, never identified the defendant as the killer, just testified to various facts linking him to the crime. The defense consisted of attempting to establish a third person committed the crime, also through  various witnesses.  One of the witnesses testified to facts implicating a third person (whose identity was never established) but who subsequently recanted all her testimony.  According to the majority, they didn't need to consider this fact.

This is another typical 9th Circuit case criticizing counsel.  It is part of a pattern established a decade ago and continues even today.  The majority opinion does nothing more that argue about the relevance of three witnesses, none of whom had important information on direct or rebuttal.  The jury listened to this grabbag of witnesses, saw the evidence and not only found the defendant guilty but imposed the death penalty.

As the dissent points out, the California Supreme Court ordered an evidentiary hearing.  The referee heard the evidence and found the facts did not warrnt reversing the conviction.The California Supreme Court agreed.  But two federal judges disagreed in a case tried in 1985.

The judges on the 9th Circuit have repeatedly overruled the California Supreme Court on "ineffective counsel" claims.  These  judges have no understanding of criminal law trial practice and basically second guess the defense. In this case they chastise counsel for not locating a witness who no one knew existed.  Counsel had the same problem with incoherent witnesses as did the prosecution.  

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